The Conservative government’s mandatory victim surcharge is a “broad brush punishment” that not only violates the Charter, but doesn’t serve its intended purpose, an Ontario judge has ruled.

Ontario Court Justice Robert Beninger struck down the mandatory requirement of the surcharge and found it to be of no force or effect since it violated a person’s Constitutional right to life, liberty and security. It’s one of the latest decisions against the controversial surcharge by provincial judges that one Ottawa prosecutor suggested this week were leading “a very public insurrection” against the new law.

Beninger, who sits in Cobourg, also found the government’s decision to take away a judge’s ability to waive the surcharge in cases where it would cause undue hardship to be “arbitrary, overreaching, and grossly disproportionate” from the supposed goal of the legislation, which was to make offenders more accountable to their victims.

The judge’s ruling last month came after he heard arguments from a Legal Aid Ontario lawyer on behalf of four offenders who were facing mandatory imposition of the surcharge but were too poor to pay them. Beninger said that under the old legislation, he would have waived the surcharge as a result of their financial circumstances.

But under the new law, “the surcharge is applicable to every offender, including an offender who has no source of income, and relies on community food banks and shelters for the basic necessities of life,” he said. An offender is given 30 days to pay a $100 surcharge, or 60 days to pay $200. Those totals are multiplied with each offence, Beninger noted, and non-payment can result in jail.

The lawyer who argued the case on behalf of the four offenders called it a “good start.”

“The effect of those (surcharges) on their sentence created a grossly disproportionate sentence,” said lawyer Alexandria Black, the supervisory duty counsel in Cobourg who argued the case.

“They basically can’t afford this. No matter how long a time you give them, they won’t be able to afford it, ever. The effect on them is they cannot afford it and they have such limited incomes and those go toward the necessities that they need rather than a fine,” said Black.

Using a test set out by the Supreme Court, Beninger found that the threat of jail that accompanied the mandatory surcharge was enough to negatively impact a person’s security. It continued to be grossly disproportionate when considering “reasonable hypotheticals,” he found.

“The ‘reasonable hypothetical’ offender is everybody, and anybody. It may be the person with mental illness challenges who relies upon community food banks and shelters for the necessities of life,” Beninger wrote.

Beninger said he didn’t find the Crown’s argument that an offender could seek an extended time to pay the fine to be persuasive. Time extensions only prolong court proceedings, he found.

“In my view, an extended enforcement procedure for a $100 surcharge, targeting a person who has no ability to pay, is not a proceeding which enhances the criminal justice system in the eyes of the community,” Beninger opined.

Beninger found that the mandatory nature of the surcharge “cannot be reconciled with a careful and balanced consideration” of the principles and purposes of sentencing, notably that judge should arrive at a fit sentence given an offender’s specific circumstances. The mandatory surcharge “casts the widest possible net upon persons being sentenced in the criminal justice system,” he ruled.

However, he concluded that the mandatory surcharge was appropriate in cases where there is a set minimum fine, such as in drinking and driving offences, since those fines reflect a considered sentencing policy.

The decision of the Ontario Court of Justice isn’t binding on any other court, said University of Ottawa law professor Carissima Mathen, although Beninger’s ruling could be persuasive in other constitutional challenges to the law.

“The issue is the Ontario Court of Justice is not superior to any other level of court,” said Mathen. “It certainly doesn’t bind the Superior Court of Justice.”

Mathen said constitutional challenges to the surcharge are expected to end up in a higher court, such as the Ontario Court of Appeal or Supreme Court.

“This is going to go much, much further,” said Mathen. “It’s going to go up, and you are going to have a higher court that gives a judgment that is going to supersede any of the judgments in the provincial court.”

Beninger isn’t the first Ontario Court Judge to rule the mandatory surcharge unconstitutional, although this is believed to be one of the first cases where a judge heard arguments from the Crown before making such a ruling.

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